Clement v. . Harrison , 193 N.C. 825 ( 1927 )

The judgment containing the findings of fact pertinent to the controversy is as follows: "It appearing to the satisfaction of the court that the plaintiffs caused a restraining order to be issued against B. A. Fisher, trustee, Bank of Rockwell, G. R. Uzzell, and others, to restrain a sale of the property described in the pleadings, pursuant to the terms of a mortgage trust deed executed by J. F. Harrison and wife, Mamie E. Harrison, to B. A. Fisher, trustee, for the Bank of Rockwell, and that the sale took place on 13 November, 1926, and that the real estate was bid in by G. R. Uzzell at the price of $1,700, and that the sale was left open for an increased bid, and that during the time between the day of sale and time allowed by law for increased bid the plaintiffs caused a restraining order to be issued against the defendants, as set out in the pleadings.

"The court finds the following facts, to wit:

"1. That the register of deeds of Rowan County has in his office an alphabetical index to real estate mortgages with a subdivision of each letter showing the alphabetical letter next in order to the title letter, beginning with ``A' and ending with ``Z,' and that the index was introduced in evidence, and that the alphabetical index to mortgages mentioned above under the letter ``H' is subdivided as follows: (1) ``Haa' to ``Hap,' (2) ``Har' to ``Haz,' (3) ``He,' (4) ``Hi,' (5) ``Ho,' (6) ``Hu' to ``Hy.'

"2. That on 16 January, 1919, J. F. Harrison and wife, Mamie E. Harrison, executed a deed of trust on the real estate in controversy to Hayden Clement, trustee, which mortgage deed of trust was registered in Book of Mortgages No. 63, page 153, register's office of Rowan County, but this mortgage, or mortgage trust deed, was indexed under the subdivision of ``Haa' to ``Hap,' and not under the subdivision of ``Har' to ``Haz.'

"3. That on 20 August, 1923, J. F. Harrison and wife, Mamie E. Harrison, executed a mortgage trust deed to B. A. Fisher, trustee, to secure the sum of $1,600 due the Bank of Rockwell, and this mortgage trust deed is registered in Book of Mortgages No. 85, page 284, in the office of the register of deeds of Rowan County, and is indexed under the alphabetical subdivision of ``Har' to ``Haz.'

"4. The defendants B. A. Fisher, trustee, and the Bank of Rockwell caused the real estate described in the mortgage executed by J. F. Harrison and wife to be advertised according to the terms of the mortgage, and sold the same at public auction on 13 November, 1926, and that said property was bid in by G. R. Uzzell at the price of $1,700.

"5. That the real estate described in the mortgage trust deed from J. F. Harrison and wife, Mamie E. Harrison, to Hayden Clement, trustee, is the same property as described in the mortgage trust deed from J. F. Harrison and wife, Mamie E. Harrison, to B. A. Fisher, trustee.

"The defendants B. A. Fisher, trustee, Bank of Rockwell, and G. R. Uzzell moved to dismiss and discharge the restraining order issued in this case, for the reason that the mortgage trust deed executed by J. F. Harrison and wife, Mamie E. Harrison, to Hayden Clement, trustee, was not properly indexed, as required by law, and was not under the proper alphabetical subdivision of the letter ``H.' The plaintiffs resisted the motion, and contended that the index does not constitute a material part of the registration, and further contended that the mortgage trust deed executed by J. F. Harrison and wife to Hayden Clement, trustee, was duly registered and was properly indexed, although it was not indexed under the subdivision of ``Har' to ``Haz,' and contended that while it was indexed under the subdivision of ``Haa' to ``Hap,' the index was sufficient.

"After hearing the argument, pro and con, the court is of opinion, and so finds:

"That the index of the mortgage from J. F. Harrison and wife to Hayden Clement, trustee, under the subdivision of ``Haa' to ``Hap' is a substantial compliance with section 3561, and is a sufficient indexing, and that it was not necessary for the mortgage trust deed to Hayden Clement, trustee, to be indexed under the subdivision of ``Har' to ``Haz,' and that the mortgage was properly indexed, and continues the restraining order issued in this case."

From the foregoing judgment the defendant appealed. The question is this: Is a mortgage or deed of trust, which has been duly and properly registered and indexed under the "appropriate letter of the alphabet," invalid by reason of the failure of the register of deeds to index the mortgage under a subdivision or catch-head of the "appropriate letter of the alphabet"? Or, to state the proposition differently, would a mortgage or deed of trust so registered take priority over a subsequent mortgage or deed of trust properly indexed and registered under the subdivision or "catch-head" of the appropriate letter of the alphabet?

It appears from the judgment in this case that the register of deeds of Rowan County kept in his office an alphabetical index to real estate mortgages. The letter "H" in such index is subdivided as follows: "Haa" to "Hap." "Har" to "Haz." "He." "Hi." "Hu" to "Hy." As the mortgage in controversy was executed by the defendants J. F. Harrison and wife, it was necessary to index and cross-index this instrument under the "appropriate letter of the alphabet," which, of course, was the letter "H." Under the subheads of the index, kept by the register of deeds, this mortgage or deed of trust should have been indexed under the subhead "Har" to "Haz," but as a matter of fact it was actually indexed under the subdivision of "Haa" to "Hap." If the indexing and cross-indexing of this deed of trust under the wrong subdivision is invalid, then the plaintiff has lost his lien securing the payment of the sum of $1,350, evidenced by the notes described in the deed of trust.

The indexing of deeds and deeds of trust and mortgages is an essential part of the registration thereof. Ely v. Norman, 175 N.C. 298; Fowle v.Ham, 176 N.C. 12; Mfg. Co. v. Hester, 177 N.C. 609; Wilkinson v.Wallace, 192 N.C. 156.

Our case presents the question as to what constitutes sufficient indexing and cross-indexing. C. S., 3560 and 3561, contain the statutory essentials of sufficient indexing and cross-indexing. C. S., 3561, provides: "The register of deeds shall provide and keep in his office full and complete alphabetical indexes of the names of the parties to all liens, grants, deeds, mortgages, bonds, and other instruments of writing required or authorized to be registered; such indexes to be kept in well-bound books, and shall state in full the names of all the parties, whether grantors, grantees, vendors, vendees, obligors, or obligees, and shall be indexed and cross-indexed, within twenty-four hours after registering any instrument, so as to show the name of each party under the appropriate letter of the alphabet; and reference shall be made, opposite each name, to the page, title, or number of the book in which is registered any instrument. A violation of this section shall be a misdemeanor." C. S., 3560, apparently contemplates that the index provided by the county commissioners shall be one book, constituting a general index of all instruments admitted to registration or required to be registered. The only requirement of cross-indexing specified in the statute is that such index and cross-index shall "show the name of each party under the appropriate letter of the alphabet, and reference shall be made opposite each name to the page, title, or number of the book in which is registered any instrument."

The deed of trust in controversy was properly registered in a book containing real estate conveyances. It was indexed and cross-indexed under the letter "H," which is the "appropriate letter of the alphabet," and the cross-index referred to the page, title, or number of the book in which the instrument had been duly registered. The statute, upon its face, apparently does not contemplate the division of the index into subheads. This division of the index into subheads has been installed in many counties for the convenience of parties who are compelled to examine the public records. Undoubtedly the method of subdividing the index is modern and efficient, and relieves the members of the profession particularly from a vast amount of unnecessary labor in passing upon titles; but, under the statute, as written, the only requirement is that the instrument should be indexed and cross-indexed under the "appropriate letter of the alphabet." This has been done. As to whether the statute should be amended so as to include "catch-heads" or subdivisions of the appropriate letter is not a matter for us to determine. It is our duty to construe the law as it is written. In the recent case of Bank v.Harrington, decided 27 April, 1927, the Court was evenly divided upon the question as to whether a real estate mortgage registered in a chattel mortgage book and cross-indexed on a chattel mortgage index was a sufficient registration of the instrument. There is a wide and fundamental difference between this case and the Harrington case referred to. In this case the deed of trust was recorded in the proper book. It was indexed on the general index for real estate conveyances, and furthermore, it was indexed and cross-indexed under the appropriate letter of the alphabet.

We therefore concur with the trial judge, declaring that the instrument was sufficiently registered and indexed so as to constitute a lien upon the land.

Affirmed.